General

Rethinking the principles used to formulate International Criminal Laws

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This Blog is written by Geetanjali Sharma from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.

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INTRODUCTION

International criminal law theory and practice (ICL). ICL promotes a contradiction in which it incorporates a post-sovereign peace and security agenda as well as a common moral discourse, yet it is encased in a state-centric view of international law and politics. Despite the rhetoric that ICL provides a method to promote global justice and peace, ICL maintains a reverence to state sovereignty that fits uneasily with how ICL is frequently depicted and understood. This article analyses how an international criminal justice system has been formed in legal and political discourse, as well as how changes in global society impact ICL theory and practice. The ultimate product is meant to open up space outside standard representations of international law and politics, allowing people to think and act in areas other than the sovereign state’s unilaterally imposed borders.

The term “international criminal law” refers to a body of international law that, by combining elements of international law — particularly International Humanitarian Law (IHL) and International Law of Human Rights (ILHR) — with domestic criminal law, imposes criminal liability on individuals directly without the need for national legal systems. This concept of ICL includes four types of crimes that are widely regarded as jus cogens, or interrogable: genocide, crimes against humanity, war crimes, and aggression. Some jurists use the word in a broader meaning to encompass international components of domestic criminal law; however, the recommended understanding here includes only those offences that can be tried in international tribunals under international law. The fundamental feature of these crimes is that they are extremely political in nature: they are crimes that are usually committed in connection with or in response to the exercise of state authority, and which must have consequences that extend beyond a single sovereign state. Thus, ‘transnational’ crimes such as drugs trafficking, piracy, enslavement, or terrorism are excluded, even if these crimes may meet the criteria of fundamental crimes, such as crimes against humanity or war crimes, depending on the circumstances of each instance.

PRIMARY APPROACH

A collection of legal standards for establishing the conditions under which persons may be held responsible to punishment is sometimes referred to as criminal law. However, this positivist view of criminal law as objectively verifiable and institutionally assured obscures the law’s contradictions and inconsistencies, disregarding the fact that crime is a product of specific legal and social systems that reflect temporally and geographically parochial imperatives.

Following the end of the Cold War, a vast literature on the changing dynamics of the global security environment arose. The notion that the traditional agenda of major power competition has become outdated has been at the heart of these arguments. According to this viewpoint, as globalization blurs the lines between time and place, a slew of new security threats develops. Individuals, collectivities (minorities, ethnic groupings, and indigenous peoples), and humanity, it is suggested, should be reconceived as the referent object of security (people generally and not just citizens of a particular state). Furthermore, it is argued that the concept of security should be broadened and expanded beyond the traditionalist definition of security as the absence of external military threats to the state to include a much broader range of threats originating in environmental destruction, economic vulnerability, and social cohesion breakdown. Furthermore, given the global nature of the new security dynamic, it is argued that a global response is necessary, one that involves international institutions, non-governmental organizations (NGOs), and civil society, as well as governments as important players. Given that many of these new security concerns arise not from state strength, military might, or geopolitical ambition, but from state vulnerabilities and the way domestic instability and internal violence may spill over into the international arena, rethinking security is critical.

The idea that the dynamics of modern global politics have sharpened the politics of identity as a source of conflict is at the heart of this new security rhetoric. While the origins of this escalation are debated, they are frequently linked to globalization-related dislocations. As a result, Cha claims that globalization processes have latent universalizing tendencies, which, when combined with the phenomenon’s “border lessness,” evokes a cultural pluralist reaction. While all conflict involves a clash of identities, it is suggested that in the modern era, ‘identity’ has become disaggregated from notions of the state, with new identity politics centered on the claim to power based on labels and the reinvention of historical memory in the context of the failure or corrosion of other sources of political legitimacy, such as the state.

As global connections deepen and homogenization trends become more evident, cultural groupings reassert claims to national or ethnic identities, particular cultures, and smaller forms of political affiliation, identity becomes a cause of conflict. In this sense, fragmentation and globalization are linked, with opposing tendencies such as disintegration, secession, and heterogeneity forming part of a discourse that questions statist world politics’ predominance.

MORAL GROUND

A common moral conversation the development of a unified moral discourse throughout global society contrasts strongly with the fragmentation of the new security agenda. Traditionally, morality has been demoted to epiphenomenal position inside the international system by international theory. Thus, the appeal to moral standards in the international realm has no universal relevance for classical Realists like Morgenthau. However, as globalization has resulted in a denser and more interconnected network of common institutions and practices, societal expectations of global justice have become stronger, helping to debunk conservative claims that morality is irrelevant. The human rights debate has been a component of the globalization of a set of ideals that, riding high on modernity’s successes, have claimed universality despite the uniqueness of the human traditions from which they stem. Human rights language, once established, has offered institutional platforms as well as normative handholds for weaker actors (both governments and non-state groups) to advance their goals.

The elaboration of an international law of human rights, the institutionalized application of human rights and pro-democracy conditionality to economic interaction or political cooperation, the UN’s and other international organizations’ shift towards coercive humanitarian intervention, and the shift towards individual clout have all contributed to the expansion of this shared moral discourse. In political areas beyond the domain of the sovereign state, the language of human rights is increasingly fostering discussion and engagement between national legal systems and ‘international constitutionalism.’

In this regard, the designation of ICL’s basic crimes as jus cogens might be interpreted as an indicator of how these crimes manifest themselves at the international system’s “constitutional” level. Democracy as a standard, and the promotion of democracy as an activity, have become firmly ingrained throughout international society in response to the expansion of human rights culture. While its growth has an inherent logic as a method to sustainably safeguard values of ‘humanity’ and human rights, it has also been influenced by political forces. The idea that human rights and democracy constitute a universal morality has been widely criticized as a totalitarian metanarrative based on the Western Enlightenment project and liberal philosophy that ignores genuine differences and political diversity. While this is not the place to discuss these concerns in detail, Hurrell offers three points that are worth considering. The classification of ICL’s basic crimes as jus cogens might be regarded in this light as an indicative of how these crimes show themselves at the “constitutional” level of the international system.

As a result of the growth of human rights culture, democracy as a norm and democracy promotion as an activity have become firmly established across worldwide society. While its expansion has intrinsic rationale as a means of safeguarding principles of “humanity” and “human rights” in the long run, it has also been affected by political factors. Third, this agreement may be argued to represent a general fear of brutality, barbarism, and oppression, as well as a shared understanding of the reality of human suffering. This is not to say that human rights and democracy must be universal or that they must be universalized. Rather, it is to demonstrate that, although morality was previously deemed epiphenomenal within the international system, there is now a common moral discourse coexisting with a new security goal that goes to the normative heart of an ICL system legitimized by moralist ideas of “humanity.”

BRINGING THEORY AND PRACTICE BACK TOGETHER

ICL’s continued imprisonment inside power systems based on the dominance of the state is no longer rational. ICL, as mentioned in previous sections, is based on international and criminal law constructs, with an instrumentalist goal (maintenance of international peace and security) and a moralist agenda (defense of ‘humanity’). Changes in global society as a result of increased contact and connectivity have spawned a new security agenda and a common moral discourse that are increasingly taking place in space beyond the sovereign state’s jurisdiction. Given the changing nature of global politics, continued deference to a traditionalist state-centric image of the international system raises serious concerns about the nature of the relationship between international tribunals, particularly the International Criminal Court (ICC), and national jurisdictions. The task is to reimagine ICL in a way that allows us to consider alternatives to standard representations of international law and politics. The last part proposes the concept of ‘primacy’ as a means of reuniting ICL practice with its theory as a system of law containing principles that transcend sovereign boundaries.

CONCLUSION

The concept of primacy, as defined above, is one approach to reimagine ICL and reconcile its practice with its theory as a system of law incorporating global values. ICL contains both an instrumentalist aim (peace and security) and a moralist agenda (protection of ‘humanity’) as a discipline reflecting the circumstances, interests, and Imperatives permeating formulations of international and criminal law. While efforts to rethink international law and politics in terms of ‘humanity’ principles have created room at the global level for examining criminal law systems and developing an international criminal justice system, ICL is now imprisoned inside power structures based on the supremacy of the state. Globalization, on the other hand, has harmed both the sovereign state’s practical viability and moral acceptability. In the context of the decline of state sovereignty and independence, a new security agenda has emerged, with identity politics emerging as a source of conflict with consequences that extend beyond national borders. Simultaneously, a shared moral discourse based on human rights and democracy has evolved to counter those who question the importance of justice in the global arena.

Given the changing character of global politics, it is impossible for an ICL system based on values that transcend sovereign borders to remain rooted in the concept of states as limited political communities. The task is to reimagine ICL in ways that allow us to act in areas beyond the state’s arbitrarily imposed borders, and to consider alternatives to the standard methods of portraying international law and politics. If the concepts of justice and peace are to have any relevance in the global arena, The dominant narratives of international law and politics must be reconnected to the unheard narratives of individuals who may perceive the potential of a common morality while still facing the horror of identity-based violence. To put it another way, ICL theory and practice must be harmonized. Of fact, solutions to complicated issues are rarely simple or straightforward, and caution should be exercised in avoiding simplistic answers given in ritualized terms. As a result, the claim that legal traditions are contingent notions, reflecting variations in the political role of law, has been treated seriously in this essay, which necessitates examination of how political power tactics produce certain ‘truths’ about international law and politics. It is from this point that the split within ICL has emerged, and it is from this point that this concluding section proposed ‘primacy’ as one way to free ICL from a ritualized, state-centric depiction of international law and politics, and reconnect theory and practice by moving ICL beyond the state structure into a realm of post-sovereign political space that better reflects contemporary global relations.